Appeal details
Counselvise Citation
[2020] 110 COUNSELVISE.COM (IT) 3709 (ITAT-BANGALORE)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
4 year(s) 7 month(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
06-11-2020
Appeal Filed By
Assessee
Order Result
Partly Allowed
Bench Allotted
B
Next Hearing Date
06-10-2020
Assessment Year
2010-2011
Appeal Filed On
05-04-2016
Judgement Text
PAGE 1 OF 16 ITA NO.732/BANG/2016 ASST.YR:2010-11 IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : BANGALORE BEFORE SHRI A. K. GARODIA, ACCOUNTANT MEMBER AND SMT. BEENA PILLAI, JUDICIAL MEMBER ITA NO. 723/BANG/2016 ASSESSMENT YEARS : 2010 11 SMT. SARITHA DUDHERIA, W/O.SRI.LAXMIPATH DUDHERIA, NO.20, VASAVI PLAZA, II FLOOR, DVG ROAD, BASAVANGUDI, BENGALURU. PAN : AFWPD 9619 P VS. DCIT CIRCLE 1, CENTRAL CIRCLE-1(2), BENGALURU. APPELLANT RESPONDENT ASSESSEE BY : SHRI.KR.PRADEEP CA ALONG WITH SMT.GIRIJA G.P.CA REVENUE BY : SHRI.PRIYAD ARSHI MISHRA DATE OF HEARING : 06/10/2020 DATE OF PRONOUNCEMENT : 06 /11/2020 O R D E R PER BEENA PILLAI, JUDICIAL MEMBER: PAGE 2 OF 16 ITA NO.732/BANG/2016 ASST.YR:2010-11 PRESENT APPEAL HAS BEEN FILED BY ASSESSE E AGAINST ORDER DATED 09/02/2016 PASSED BY LD.CIT(A)-11, BANGALORE FOR ASSESSMENT YEAR 2010-11 ON FOLLOWING GROUNDS OF APP EAL: 1. THAT THE ORDER OF THE AUTHORITIES BELOW IN SO FAR A S IT IS AGAINST THE APPELLANT IS AGAINST THE LAW, FACTS, CIRCUMSTAN CES, NATURAL JUSTICE, WITHOUT JURISDICTION, BAD IN LAW AND ALL O THER KNOWN PRINCIPLES OF LAW. 2. THAT THE TOTAL INCOME AND TOTAL TAX LIABILITY COMPU TED IS HEREBY DISPUTED. 3. THE ORDER IS BASED ON SURMISE, SUSPICION AND CONJUN CTURE AND IS IN BLATANT DISREGARD TO THE EVIDENCE ON RECORD, LAW , FACT AND JUDICIAL PRONOUNCEMENT OF HIGHER AUTHORITIES AND CO URTS, REQUIRES TO BE CANCELLED. 4. THAT THE NOTICE, INITIATION AND SUBSEQUENT PROCEEDI NGS U/S 148 ARE BAD IN LAW, WITHOUT JURISDICTION AND REQUIRES TO BE CANCELLED. 5. THAT THE NOTICE U/S 148 IS WITHOUT JURISDICTION AND IS IN TOTAL DISREGARD TO THE PROVISIONS OF C AIR - 5 - FERXIV OF THE IT ACT, 1961. 6. THAT THE ENTIRE REASSESSMENT PROCEEDINGS VIOLATE TH E PROCEDURE PRESCRIBED BY THE SUPREME COURT IN 259 ITR 19 FOR 1 48 PROCEEDINGS. 7. THAT THE AUTHORITIES BELOW ERRED IN MAKING ADDITION OF RS.1,00,00,000/-AS UNEXPLAINED INCOME. 8. THAT THE ADDITION HAS BEEN MADE CONTRARY TO THE BOA RD INSTRUCTION DATED 10TH MARCH, 2003 VIDE F.NO.286/2/2003/IT(INV) AND WITHOUT ANY COGENT EVID ENCE IN SUPPORT OF THE ADDITION. 9. THE APPELLANT DENIES THE LIABILITIES OF INTEREST U/ S 234A AND 234B OF THE ACT. FURTHER PRAYS THAT INTEREST IF ANY SHOULD BE LEVIED ONLY ON RETURNED INCOME. 10. NO OPPORTUNITY HAS BEEN GIVEN BEFORE LEVY OF INTERE ST U/S 234A AND 234B OF THE ACT. 11. WITHOUT PREJUDICE TO THE APPELLANT'S RIGHT OF SEEKI NG WAIVER BEFORE APPROPRIATE AUTHORITY, THE APPELLANT BEGS FOR CONSE QUENTIAL RELIEF IN THE LEVY OF INTEREST U/S 234A AND 234B OF THE ACT. 12. FOR THE ABOVE AND OTHER GROUNDS AND REASONS WHICH M AY BE SUBMITTED DURING THE COURSE OF HEARING OF THE APPEAL, THE ASS ESSEE REQUESTS THAT THE APPEAL BE ALLOWED AS PRAYED AND JUSTICE BE REND ERED. PAGE 3 OF 16 ITA NO.732/BANG/2016 ASST.YR:2010-11 BRIEF FACTS OF THE CASE ARE AS UNDER: 2. ASSESSEE IS AN INDIVIDUAL AND FILED HER RETURN OF I NCOME ON 29/09/2011 DECLARING TOTAL INCOME OF RS.9,33,970/-. THE RETURN WAS PROCESSED UNDER SECTION 143(1) OF THE ACT. THERE WAS A SEARCH UNDER SECTION 132 OF THE ACT, IN CASE OF M/S. BHARAT MINES AND MINERALS ON 19/07/2010. THE SEARCH ALSO COVERED SRI.LAKSHMIPAT DUDHORIA, BEING HUSBAND OF A SSESSEE. DURING THE COURSE OF SEARCH, CERTAIN DOCUMENTS WERE FOUND, WHICH WAS NOT BELONGING TO SRI.LAKSHMIPAT DUDHORIA. THE D OCUMENT WAS MARKED AS A1/DC AT PAGE 32 & 33 2.1. ASSESSEE GAVE LETTER DATED 17/09/2010 TO DDIT (INV. ) DECLARING RS.1 CRORE FOR ASSESSMENT YEAR 2010-11 TO COVER ENT RIES IN THE LOOSE SHEET MARKER A1/DC AT PAGES 32&33 AS WELL AS MISCEL LANEOUS ISSUES SUCH AS INVESTMENT, EXPENDITURE ETC. THIS L ETTER WAS SIGNED BY ASSESSEE UNDER SECTION 132(4) OF THE ACT. ----THIS SPACE IF LEFT VACANT INTENTIONALLY ---- PAGE 4 OF 16 ITA NO.732/BANG/2016 ASST.YR:2010-11 PAGE 5 OF 16 ITA NO.732/BANG/2016 ASST.YR:2010-11 2.2. SUBSEQUENTLY, THE INVESTIGATION WING SUMMONED ASSES SEE U/S131 OF THE ACT AND HER STATEMENT WAS RECORDED ON 24/09/2010. THE RELEVANT PORTION OF STATEMENT RECORDED HAS BEEN REPRODUCED BY LD.AO IN ASSESSMENT ORDER IN PARA 4.4. 2.3. BASED ON THE STATEMENT RECORDED, LD.AO HAD REASON T O BELIEVE THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMEN T WITHIN THE MEANING OF SECTION 147 OF THE ACT AND ACCORDINGLY, AFTER RECORDING SATISFACTION, NOTICE UNDER SECTION 148 WAS ISSUED O N 28/08/2012, REQUIRING ASSESSEE TO FILE RETURN OF INCOME. IN RES PONSE, ASSESSEE PAGE 6 OF 16 ITA NO.732/BANG/2016 ASST.YR:2010-11 FILED A LETTER ON 21/12/2012 STATING THAT RETURN FI LED ON 28/09/2011 MAY BE TREATED AS RETURN IN RESPONSE TO NOTICE UNDER SECTION 148 OF THE ACT. SUBSEQUENTLY, NOTICE UNDER SECTION 143(2) WAS ISSUED ON 11/01/2013 ALONG WITH NOTICE UNDER SE CTION 142(1) CALLING FOR THE DETAILS. VIDE LETTER DATED 11/02/20 13, ASSESSEE SOUGHT REASONS RECORDED BY LD.AO FOR REOPENING OF A SSESSMENT. LD.AO DISPATCHED THE REASONS RECORDED ON 11/07/2013 . 2.4. BEFORE LD.AO, ASSESSEE DID NOT OBJECT FOR PROCEEDIN GS UNDER SECTION 147, WHICH WAS RECORDED VIDE ORDER SHEET NO TING DATED 20/02/2014. IT IS RECORDED BY LD.AO THAT TO BUY PEACE AND PUT A N END TO ANY POSSIBLE LITIGATION ASSESSEE DECLARED A SUM OF RS.1 CRORE FOR ASSESSMENT YEAR UNDER CONSIDERATION TO COVER THE EN TRIES IN THE LOOSE SHEET AS WELL AS MISCELLANEOUS ISSUE SUCH AS INVESTMENT, EXPENDITURE ETC. ASSESSEE SUBMITTED THE DISCLOSURE IN WRITING VIDE LETTER DATED 17/09/2010 UNDER SECTION 132(4) OF THE ACT, WHICH IS REPRODUCED BY LD.AO IN ASSESSMENT ORDER. 2.5. LD.AO IN ASSESSMENT ORDER REFERS TO THE STATEMENT R ECORDED BY THE INVESTIGATION WING OF ASSESSEE ON 24/09/2010 WH EREIN SHE STATED THAT SOURCES OF THE INVESTMENTS APPEARING IN THE SEIZED DOCUMENTS WERE OUT OF HER UNDISCLOSED AN UNACCOUNTE D INCOME EARNED BY HER DURING THE FINANCIAL YEAR 2009-10, AN D THAT, SHE INVESTED SUCH AMOUNT IN SHARES AND LOANS AND ADVANC ES IN CASH AS MENTIONED IN THE DOCUMENT SEIZED. LD.AO HAS REPRODU CE THE STATEMENT RECORDED BY ASSESSEE IN THE ASSESSMENT OR DER AND HAS ALSO REPRODUCED THE TYPED DOCUMENT SEIZED BEING A1/ DC AT PAGE PAGE 7 OF 16 ITA NO.732/BANG/2016 ASST.YR:2010-11 33. IN THE PAPER BOOK FILED BY ASSESSEE ON 24/07/20 18 THE SEIZED DOCUMENTS AT PAGE 32 IS PLACED. 2.6. BEFORE LD.AO, ASSESSEE SUBSEQUENTLY CHANGED HER STA ND BY SUBMITTING THAT SAID INCOME OF RS.1CR, THOUGH WAS D ECLARED U/S.132(4) FOR YEAR UNDER CONSIDERATION, HOWEVER BE LONGED TO ASSESSMENT YEAR 2011-12. ASSESSEE FILED LETTER WITH LD.AO ON 12/08/2013, SUBMITTING THAT SHE OFFERED SUM OF RS.1 CR FOR ASSESSMENT YEAR 2011-12, AND THAT SHE HAS PAID TAXE S ON THE SAID INCOME, ALONG WITH COPY OF ACKNOWLEDGEMENT OF RETUR N OF INCOME AND COMPUTATION OF TOTAL INCOME.LD.AO REJECTED THE CONTENTION OF ASSESSEE. 2.7. LD.AO COMPLETED THE ASSESSMENT BY MAKING ADDITION O F RS.1CR THE HANDS OF ASSESSEE FOR YEAR UNDER CONSIDERATION. 3. AGGRIEVED BY ADDITION MADE, ASSESSEE PREFERRED APPE AL BEFORE LD.CIT(A). 3.1. BEFORE LD.CIT(A), ASSESSEE ALSO CHALLENGED PROCEEDI NGS UNDER SECTION 148 OF THE ACT TO BE BAD IN LAW. IT WAS ALL EGED BY ASSESSEE THAT, PROCEEDINGS IN ASSESSEES CASE SHOULD HAVE BE EN IN ACCORDANCE WITH PROVISIONS OF SECTION 153C SINCE AD DITION IS FOUND DURING SEARCH. 3.2. LD.CIT(A) AFTER CONSIDERING SUBMISSIONS AND THE DEC ISIONS RELIED BY LD.AR OBSERVED AS UNDER: 8. AS FAR AS ISSUE OF NOTICE U/S 148 VIS A VIS 153 C IS CONCERNED, THE FACTS ARE LITTLE DIFFERENT IN THIS CASE. AS DISCUSS ED IN EARLIER PARAGRAPHS OF THIS ORDER (PARA-5.4), THERE WAS A SEARCH IN THE CA SE OF APPELLANTS HUSBAND WHERE SOME DOCUMENTS RELATED TO APPELLANT W ERE SEIZED. SUBSEQUENT TO THE SEARCH, THE APPELLANT HAS GIVEN A LETTER TO DEPUTY DIRECTOR OF INCOME TAX (INV) UNIT II(2), BANGALORE, ON 17.09.2010. IN THAT LETTER SHE HAS PROMISED TO OFFER RS.1 CRORE AS HER UNDISCLOSED INCOME FOR PAGE 8 OF 16 ITA NO.732/BANG/2016 ASST.YR:2010-11 THE ASSESSMENT YEAR 2010-11. THIS WAS REITERATED IN HER SWORN STATEMENT RECORDED BEFORE DEPUTY DIRECTOR OF INCOME TAX (INV) UNIT II(2), BANGALORE, ON 24.09.2010. HENCE, WHEN SHE HAS NOT A DMITTED HER INCOME IN A.Y.2010-11, A NOTICE U/S 148 WAS ISSUED TO TAX THE INCOME ESCAPED IN THE A.Y.2010-11. THEREFORE, THE ESCAPEMENT OF INCOM E IS BECAUSE OF THE LETTER WRITTEN BY THE APPELLANT ON 17.09.2010 AND S WORN STATEMENT ON 24.09.2010. ONCE ESCAPEMENT OF INCOME IS ESTABLISHE D, THE ASSESSING OFFICER HAS RIGHTLY ISSUED NOTICE U/S 148 OF THE IN COME-TAX ACT, 1961. 8.1 IT WILL NOT BE OUT OF PLACE TO MENTION THAT THI S GROUND HAS NEVER BEEN RAISED BEFORE THE ASSESSING OFFICER. THE APPELLANT HAD NO OBJECTION FOR PROCEEDINGS U/S.147 OF THE ACT, WHICH WAS RECORDED, VIDE ORDER SHEET NOTING DATED 20.02.2014, WHICH IS REPRODUCED AS UND ER: 'MS. SANJANA, CA APPEARED ALONG WITH SUPPORTING DET AILS. HAD NOT FILED ANY OBJECTION FOR REOPENING. HAD STATED THAT ONE CRORE HAS BEEN OFFERED FOR A.Y.2011-12 INSTEAD OF A.Y.201 0-11. SHE HAS ALSO TOLD THAT THE AMOUNT OF ONE CRORE SHOULD NOT B E ASSESSED FOR A.Y.2010-11'. 9. NOW THE APPELLANT IS TAKING A STAND THAT THAT TH E ASSESSMENT WAS WRONG AND A NOTICE U/S 153C SHOULD HAVE BEEN IS SUED. THIS CANNOT BE THE PURPOSE OF ALLOWING ADDITIONAL GROUND S OF APPEAL. A LEGAL GROUND WHICH HAS NEVER BEEN RAISED BEFORE ASSESSING OFFICER CAN BE RAISED BEFORE THE CIT(A) IF IT GOES TO THE ROOT OF THE MATTER. BUT IT CANNOT MEAN TO SAY THAT A GROUND CONCEDED BEFORE ASSESSING OFFICER CAN STILL BE RAISED BEFORE THE CIT(A). HAVING CONCEDED THAT S HE HAS NO OBJECTION WITH PROCEEDINGS U/S 147/148 OF THE ACT AND HAVING PARTICIPATED IN ALL THE ASSESSMENT PROCEEDINGS, IT APPEARS THAT THE APP ELLANT HAS A CHANGE OF MIND LATER. IT CANNOT BE PERMISSIBLE NOW AT THE APPELLATE STAGE AND THIS GROUND OF APPEAL DESERVES TO BE REJECTED ON TH IS REASONING TOO. LD.CIT(A) THUS REJECTED APPEAL FILED BY ASSESSEE. AGGRIEVED BY ORDER PASSED BY LD.CIT(A), ASSESSEE IS IN APPEAL BEFORE US NOW. 4. LD.AR SUBMITTED THAT, GROUND NO. 1-3 ARE GENERAL IN NATURE AND THEREFORE DO NOT REQUIRE ADJUDICATION. 5. GROUND NO. 4-6 IS ON LEGAL ISSUE RAISED BY ASSESSEE, CHALLENGING THE PROCEEDINGS INITIATED BY LD.AO UNDER SECTION 14 8 OF THE ACT. PAGE 9 OF 16 ITA NO.732/BANG/2016 ASST.YR:2010-11 LD.AR SUBMITTED THAT, REASONS RECORDED FOR REOPENIN G OF ASSESSMENT IS BASED ON SEIZED MATERIAL I.E; A1/DC B EING PAGE 32 AND 33. IT IS SUBMITTED THAT, THESE DOCUMENTS WERE SEIZED FROM PREMISES OF M/S BHARAT MINES AND MINERALS. IT HAS B EEN SUBMITTED BY LD.AR THAT WITHOUT ADVERTING TO THE VERACITY WHE THER, SUCH MATERIAL WAS INDEED SEIZED OR NOT AND WHETHER MATER IAL SEIZED WERE INCRIMINATING IN NATURE OR NOT, LD.AO ISSUED NOTICE UNDER SECTION 148 TO ASSESSEE. PLACING RELIANCE ON PROVISIONS OF SECTION 153A/153C, LD.AR SUBMITTED THAT, ASSESSMENT BASED O N SEIZED MATERIAL CANNOT BE MADE BY ISSUING NOTICE UNDER SEC TION 148 OF THE ACT. HE SUBMITTED THAT IF ANY PROCEEDINGS COULD BE INITIATED SHALL BE ONLY UNDER SECTION 153C READ WITH 153A OF THE ACT, IN THE CASE OF ASSESSEE. HE PLACED RELIANCE ON FOLLOWING DECISIONS IN SUPPORT OF HIS CONTENTION: KEDARNATH JUTE MANUFACTURING CO LTD VS CIT REPORTED IN 82 ITR 363 (SC) TANSUKHARI BODULAL VS ITU AND ORS. REPORTED IN 46 I TR 325 (FB- ASSAM) MANVY BROS VS CIT REPORTED IN BOM HC 93 CCH 40 SMT. BHAGYA NAGARAJ VS DCIT IN ITA NO.93-96/BANG/20 17 FOR ASSESSMENT YEAR 2005-06 TO 2008-09 BY ORDER DATED 25/10/2017 ACIT VS SH.SRINIVAS RAO HOSKOTE IN ITA NO.1154-1155 /BANG/2015 FOR ASSESSMENT YEARS 2010-11 AND 2011-12 BY ORDER DATED 21 02/02/2018 HALCROW GROUP LTD., VS ADIT IN ITA NOS. 5163-5164/D /2010 AND 5554/D/2010 FOR AY 2004-05 AND 2005-06 DATED 02/07/ 2018(DEL TRIB). RAJAT SHUBRA CHATTERJI VS.ACIT REPORTED IN (2016) 4 7 CCH 0135 (DEL TRIB.) ITO VS ARUN KUMAR KAPOOR REPORTED IN (2011) 30 CCH 0325 (ASR. TRIB) 5.1. RELYING ON ABOVE DECISIONS, LD.AR SUBMITTED THAT, A S THE DOCUMENTS WERE SEIZED DURING THE COURSE OF SEARCH, PROVISIONS OF PAGE 10 OF 16 ITA NO.732/BANG/2016 ASST.YR:2010-11 SECTION 153C OF THE ACT ARE APPLICABLE. HE SUBMITTE D THAT, SECTION 153C IS A NOTWITHSTANDING CLAUSE AND THEREFORE WI LL SUPERSEDE APPLICABILITY OF PROVISIONS OF SECTION 147 AND 148 OF THE ACT. 5.2. ON THE CONTRARY, LD.SR.DR SUBMITTED THAT, DOCUMENTS SEIZED WERE FOUND FROM PREMISES OF ASSESSEES HUSBAND DURI NG THE COURSE OF SEARCH ON HIM. IN THE PRESENT FACTS OF THE CASE, FROM SEIZED DOCUMENTS IT WAS NOT DISCERNIBLE, AS TO WHOM, IT B ELONGS TO OR PERTAINED TO OR RELATED TO AND THEREFORE, THE P RESUMPTION UNDER SECTION 292C PROVIDES THAT, THE DOCUMENTS FOUND IN POSSESSION OR CONTROL OF ANY PERSON IN COURSE OF SEARCH SHOULD BE CONSIDERED TO BE BELONGING TO THAT PERSON. 5.3. LD.SR.DR SUBMITTED THAT, IT WAS DURING THE COURSE O F INVESTIGATION BY THE DDIT THAT ASSESSEE TOOK THE ON US OF THE DOCUMENTS RELATING TO HER BY WAY OF DISCLOSURE UNDE R SECTION 132(4) OF THE ACT ON 17/09/2010. ON THE BASIS OF SUCH DISC LOSURE NOTICE UNDER SECTION 131 WAS ISSUED TO ASSESSEE. THUS, THE ONLY RECOURSE FOR LD.AO TO CONSIDER THESE DOCUMENTS IN THE HANDS OF ASSESSEE WAS TO INITIATE REASSESSMENT PROCEEDINGS. HE SUBMIT TED THAT, STATEMENT RECORDED BY DDIT OF ASSESSEE IN RESPECT O F A1/DC AT PAGE 32&33 CATEGORICALLY ESTABLISHES THAT SHE AGREE D TO THE INVESTMENTS MENTIONED THEREIN TO BE MADE BY HER WIT H THE HELP OF HUSBAND. LD.SR.DR, PRIMARILY SUBMITTED THAT THERE W AS NO PANCHANAM DRAWN BASED ON THE STATEMENT OF ASSESSEE THAT PROVISIONS OF 153A/C COULD BE INITIATED. HE ALSO SU BMITTED THAT ASSESSEE WAS NOT COVERED UNDER SEARCH ACTION. SECON DLY HE SUBMITTED THAT THE DDIT(INV.) DISCLOSURE BY ASSESSE E U/S132(4) OF PAGE 11 OF 16 ITA NO.732/BANG/2016 ASST.YR:2010-11 THE ACT, AND STATEMENT RECORDED BY DIT THAT WAS FOR WARDED TO LD.AO. LD.SR.DR SUBMITTED THAT, IT WAS UPON ASSESSE E OWNING THE DOCUMENT THAT LD.AO INITIATED PROCEEDINGS UNDER SEC TION 148 OF THE ACT. HE SUBMITTED THAT IN NO WAY IT COULD BE HELD, BUT FOR THE STATEMENT GIVEN BY ASSESSEE UNDER SECTION 132(4) TH AT, THESE DOCUMENTS COULD BE HELD TO BE BELONGING TO ASSESSEE . HE VEHEMENTLY SUBMITTED THAT PROCEEDINGS WERE INITIATE D ON ASSESSEE PURSUANT TO STATEMENT RECORDED UNDER SECTION 131 OF THE ACT. 5.4. LD.SR.DR FURTHER SUBMITTED THAT, ASSESSEE DID NOT F ILE ANY OBJECTIONS BEFORE LD.AO IN THE REASSESSMENT PROCEED INGS UNDER SECTION 148 FOR YEAR UNDER CONSIDERATION ALLEGING T HE VALIDITY OF REOPEANING. INSTEAD SHE ADMITTED THAT THE DOCUMENTS RELATES TO HER AND THAT SHE WOULD OFFER RS.1CRORE TO COVER UP THE ENTRIES IN THE LOOSE SHEETAS WELL AS MISCELLANEOUS ISSUE SUCH AS E XPENDITURE ETC. AND THE STATEMENTS RECORDED BY LD.AO DURING THE ASS ESSMENT PROCEEDINGS ARE SELF EXPLAINATORY REGARDING THE UNA CCOUNTED MONEY THAT IS DISCERNIBLE FROM THE SEIZED DOCUMENTS OWNED BY ASSESSEE HERSELF. LD.SR.DR SUBMITTED THAT, THE STATEMENT REC ORDED UNDER SECTION 132(4) OF THE ACT, HAVE GREAT EVIDENTIARY W HILE YOU AND CANNOT BE DISCARDED IN A SUMMARY MANNER. LD.SR.DR P LACED RELIANCE ON FOLLOWING DECISIONS: DECISION BY HONBLE SUPREME COURT IN BANNALAL JAT CONSTRUCTIONS (P.) LTD VS. ACIT REPORTED IN (2019) 106 TAXMANN.COM. AGR INVESTMENT LTD REPORTED IN 333 ITR 146 (DEL) SAFETAGE INTERNATIONAL INDIA (P) LTD REPORTED IN 33 2 ITR 622 (DEL) MOBIUS INDIA LTD (MAD) IN WP NO. 3354 AND 3355 OF 2 015 BY ORDER DATED 04/08/2015 PAGE 12 OF 16 ITA NO.732/BANG/2016 ASST.YR:2010-11 SENATE VS DCIT REPORTED IN (2016) 68 TAXMANN.COM 22 3 (BANG) RAMESHCHANDRA AND CO VS CIT REPORTED IN (1987) 35 T AXMAN 153 (BOM) KUNHAMBU VS CIT REPORTED IN (1996) 86 TAXMANN 477 ( KER) CARPENTERS CLASSIC (EXEMPT) (P) LTD VS DCIT REPORTE D IN (2007) 108 ITD 142 (BANG) SUDHARSHAN P.AMIN VS ACIT REPORTED IN (2013) 35 TAXMANN.COM 370 (GUJ) 5.5. HE THUS SUBMITTED THAT PROCEEDINGS INITIATED UNDER SECTION 148 DOES NOT GET VITIATED DUE TO PECULIAR CIRCUMSTA NCES IN PRESENT FACTS. 5.6. ON MERITS, LD.SR.DR SUBMITTED THAT, HAVING SAID SO IN THE STATEMENT RECORDED UNDER SECTION 131 AND SUBSEQUENT STATEMENT RECORDED BY LD.AO DURING REASSESSMENT PROCEEDINGS, ASSESSEE DECLARED RS.1 CRORE FOR ASSESSMENT YEAR 2011-12 WHI CH WAS INTIMATED TO LD.AO BY LETTER DATED 12/08/2013. LD.S R.DR PLACING RELIANCE ON DECISION OF HONBLE SUPREME COURT IN CASE OF BANNALAL JAT CONSTRUCTIONS (P.) LTD VS. ACIT(SUPRA), THE DISCLOSURE MADE BY ASSESSEE WAS BASED ON CERTAIN DOCUMENTS ADMITTED TO BE RELATED TO ASSESSEE SUO MOTO, AND HAVING ACCEPTED THE DISCLOSU RE BY REVENUE, IN LIGHT OF STATEMENT RECORDED UNDER SECTION 131, A SSESSEE COULD NOT HAVE CHANGED HER STAND. 5.7. HE ALSO SUBMITTED THAT THE SEARCHED PERSON HAVING D ISOWNED THE DOCUMENTS, AND ASSESSEE SUO MOTO DECLARING INCOME FOR ASSESSMENT YEAR 2010-11, CONSIDERING SUCH DOCUMENTS , ESTABLISHES THE ADMISSION IN THE STATEMENT. ASSESSEE DID NOT HA VE ANY VALID REASON TO SHIFT THE DISCLOSURE TO ASSESSMENT YEAR 2 011-12. HE SUPPORTED THE ADDITION MADE FOR YEAR UNDER CONSIDER ATION. PAGE 13 OF 16 ITA NO.732/BANG/2016 ASST.YR:2010-11 6. WE HAVE PERUSED THE RECORD AND SUBMISSIONS ADVANCED BY BOTH SIDES. ASSESSEE FILED HER ORIGINAL RETURN OF INCOME ON 29/ 09/2011 DECLARING TOTAL INCOME OF RS.9,33,970/-. THE ASSESS MENT YEAR INVOLVED IN THE PRESENT CASE IS 2010-11. AND NOTIC E U/S 147 WAS ISSUED TO ASSESSEE ON 28/8/2012. 6.1. THERE WAS A SEARCH UNDER SECTION 132 OF THE ACT, IN CASE OF M/S. BHARAT MINES AND MINERALS ON 19/07/2010. THE S EARCH ALSO COVERED SRI.LAKSHMIPAT DUDHORIA, BEING HUSBAND OF A SSESSEE. DURING THE COURSE OF SEARCH, CERTAIN DOCUMENTS WERE FOUND, WHICH WAS NOT BELONGING TO SRI.LAKSHMIPAT DUDHORIA. THE D OCUMENT WAS MARKED AS A1/DC AT PAGE 32 & 33 6.2. WE NOTE THAT ASSESSEE WAS INVESTIGATED BASED ON THE DISCLOSURE MADE BY HER SUO MOTO UNDER SECTION 132(4) TO THE DTI(INV.) ON 17/09/2010. WE ALSO NOTE THAT SUBSEQUENT TO THE DEC LARATION, DIT(INV.) SUMMONED ASSESSEE UNDER SECTION 131 OF TH E ACT ON 24/09/2010. IT IS NOT THE CASE OF ASSESSEE THAT THE INVESTIGATION WING IMPOUNDED DOCUMENTS OR REQUISITIONED ANY ASSET S UNDER SECTION 132/132A OF THE ACT. THERE IS NOTHING ON RE CORD TO SHOW THAT THE DIT(INV,) REQUISITIONED OR SEIZED, ANY BOO KS OF ACCOUNT OR DOCUMENTS/ASSETS ETC., AS PER SECTION 132/132A OF T HE ACT. FURTHER WE NOTE THAT APART FROM THE DECLARATION GIV EN BY ASSESSEE THERE IS NOTHING TO ESTABLISH THAT THE DOCUMENTS BE LONGED TO OR EVEN RELATED TO ASSESSEE. UNDER SUCH CIRCUMSTANCES PROVI SIONS OF SECTION 153A/153C WOULD NOT BE APPLICABLE. PAGE 14 OF 16 ITA NO.732/BANG/2016 ASST.YR:2010-11 6.3. AS PER THE SCHEME OF THE ACT THE YEAR IN WHICH SEAR CH IS CONDUCTED DOES NOT FALL WITHIN THE PURVIEW OF THE P ROVISIONS EITHER UNDER SECTION 153A OR UNDER SECTION 153C. ACT ALLO WS 6 YEARS PERIOD TO BE COMPUTED FROM THE PREVIOUS YEAR RELEV ANT TO THE YEAR IN WHICH THE SEARCH WAS CONDUCTED. IN PRESENT FACTS THE YEAR UNDER CONSIDERATION IS RELEVANT TO FINANCIAL YEAR IN WHIC H SEARCH TOOK PLACE. FURTHER THERE HAS BEEN NO ACTION ON ASSESSE E UNDER SECTION 132 OR REQUISITION IS MADE UNDER SECTION 132A AS PE R SECTION 153C(2). IN THE PRESENT FACTS NONE OF THESE CONDITI ONS STANDS SATISFIED. WE THEREFORE FIND ARGUMENT ADVANCED BY LD.AR CHALLENGING THE REOPENING IS WITHOUT ANY BASIS AND DOES NOT SATISFY THE REQUIRED CONDITIONS TO BE CONSIDERED AS PER LAW . THE REOPENING CANNOT BE QUASHED ON SUCH TECHNICALITIES AS ARGUED BY LD.AR THAT, ASSESSEE FALLS UNDER THE CATEGORY OF OTHER PERSON A S PER SECTION 153A OF THE ACT. IN OUR VIEW REOPENING NOTICE WAS ISSUED AS ASSESSEE FAILED TO INCLUDE THE AMOUNT DISCLOSED VI DE HER LETTER DATED 17/09/2010 IN THE RETURN FILED FOR YEAR UNDER CONSIDERATION ON 29/09/2011. 6.4. IN OUR VIEW THE ARGUMENTS ADVANCED BY LD.SR.DR DESE RVES TO BE UPHELD. AS OBSERVED HEREINABOVE IT WAS PURSUANCE TO THE DECLARATION BY ASSESSEE THAT THE SUMMON UNDER SECTI ON 131 WAS ISSUED BASED UPON THE STATEMENTS RECORDED THEREIN T HE REOPENING HAS BEEN INITIATED. WE NOTE THAT REOPENING NOTICE I S ISSUED AS ASSESSEE FAILED TO INCLUDE THE DISCLOSURE MADE AS P ER STATEMENT RECORDED IN THE RETURN FILED FOR YEAR UNDER CONSIDE RATION. IT IS APPARENTLY CLEAR THAT THE REOPENING NOTICE HAS BEEN ISSUED PAGE 15 OF 16 ITA NO.732/BANG/2016 ASST.YR:2010-11 SUBSEQUENT TO THE FILING OF RETURN FOR YEAR UNDER C ONSIDERATION BY ASSESSEE. 6.5. WE THEREFORE, REJECT THE GROUNDS RAISED BY ASSESSEE CHALLENGING THE VALIDITY OF REASSESSMENT PROCEEDINGS. ACCORDINGLY GROUNDS, 1-6 AND 8 RAISED BY ASSESSEE S TANDS DISMISSED. 7. GROUND NO. 7 HAS BEEN RAISED BY ASSESSEE CHALLENGING THE ADDITION OF RS.1 CRORE AS UNEXPLAINED INCOME. 7.1 WE NOTE THAT ASSESEEE HAD RAISED THIS ISSUE BEF ORE LD.CIT(A). HOWEVER IT HAS NOT BEEN DECIDED BY LD.CIT(A). ACCO RDINGLY WE DEEM IT PROPER TO REMAND THIS ISSUE BACK TO LD.CIT(A) TO CONSIDER THE ISSUE ALLEGED IN ACCORDANCE WITH LAW. ACCORDINGLY THIS GROUND RAISED BY ASSESSEE STANDS A LLOWED. IN THE RESULT APPEAL FILED BY ASSESSEE STANDS PARTL Y ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 6 TH NOV, 2020 SD/- SD/- (A.K. GARODIA) (BEENA PILLAI) ACCOUNTANT MEMBER JUDICIAL MEMBER BANGALORE, DATED: 6 TH NOVEMBER, 2020. /VMS/ PAGE 16 OF 16 ITA NO.732/BANG/2016 ASST.YR:2010-11 DATE INITIAL 1. DRAFT DICTATED ON ON DRAGON SR.PS 2. DRAFT PLACED BEFORE AUTHOR - 1 1 - 2020 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER - 1 1 - 2020 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. - 1 1 - 2020 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS - 1 1 - 2020 SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON - 1 1 - 2020 SR.PS 7. DATE OF UPLOADING THE ORDER ON WEBSITE - 1 1 - 2020 SR.PS 8. IF NOT UPLOADED, FURNISH THE REASON -- SR.PS 9. FILE SENT TO THE BENCH CLERK - 1 1 - 2020 SR.PS 10. DATE ON WHICH FILE GOES TO THE AR 11. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 12. DATE OF DISPATCH OF ORDER. 13. DRAFT DICTATION SHEETS ARE ATTACHED NO SR .PS
